Page 36 - TPA Journal November December 2022

encounter between civilians and law enforcement trial court and no error on the part of the court of
begins before, and thus can continue after, a appeals.
suspect has been subjected to a search or seizure. Background On September 18, 2016, Adrianus
Long and its progeny are premised on the Michael Kusuma was shot and killed during a
understanding that a police officer may still be in robbery at his residence. The homeowner’s brother,
danger after a suspect is released and allowed to Sebastianus Kusuma, witnessed the murder and
return to his car. Rodriguez points to no authority said the perpetrators were two black men who fled
questioning that understanding. in a white, four-door sedan. Investigators learned
The officers had a reasonable basis to believe that that, shortly after the murder, one of the Kusuma’s
Rodriguez might return to the vehicle and access a neighbors saw a white, four-door sedan exit the
weapon. Under Long, they were thus authorized to neighborhood at a very high rate of speed.
conduct a protective sweep of the passenger Investigators obtained security footage from a
compartment. Because the search was legal, the nearby residence showing a white sedan
question of Rodriguez’s standing to challenge it is suspiciously circling the neighborhood, not only on
immaterial. Rodriguez’s conviction and the denial the day of the capital murder, but on the day before
of his motion to suppress are AFFIRMED. as well. On four separate occasions, the sedan
entered a cul-de-sac, drove to the front of the
U.S. v. Rodriguez, 5 th Cir., No. 21-20150, May residence where the murder occurred, and then
turned around. One neighbor came forward and
13, 2022.
informed investigators that a white sedan had
WARRANTS – Affidavit for cell phone search, passed by his residence three times shortly before
sufficiency of affidavit the murder. The neighbor added that the sedan was
driven by a large black male. Another neighbor
During a capital murder investigation, investigators came forward and said that she had seen a white,
obtained a search warrant for Appellee John Wesley four-door sedan “casing” the neighborhood on the
Baldwin’s phone pursuant to Texas Code of day before the offense. This neighbor said there
Criminal Procedure article 18.0215(c)(5)(B). In a were two occupants in the sedan, and both were
motion to suppress, Appellee objected to the search black men. This neighbor took a picture of the
warrant’s supporting affidavit, which contained sedan, capturing the license plate. Investigators
generic statements about the use of cell phones. determined that the sedan in the photo was
The trial court and the court of appeals both registered to Appellee’s stepfather, who claimed he
concluded that the affidavit did not contain sold the sedan to Appellee. Appellee’s stepfather
sufficient facts to establish a fair probability that a told investigators that Appellee was living at his
search of the cell phone found in Appellee’s vehicle girlfriend’s apartment. Investigators located the
would likely produce evidence in the investigation sedan at the apartment and followed Appellee as he
of the murder. We granted review to answer this left in the sedan. A marked unit eventually pulled
question: under what circumstances may boilerplate Baldwin over for unsafely crossing two lanes of
language about cell phones be considered in a traffic in a single maneuver and for driving over the
probable cause analysis? We hold that boilerplate “gore zone,” which is the triangular portion of a
language may be used in an affidavit for the search highway exit. Baldwin was arrested for those traffic
of a cell phone, but to support probable cause, the violations, as well as for driving with an expired
language must be coupled with other facts and license and for failing to show identification on
reasonable inferences that establish a nexus demand. Appellee made a lengthy statement to the
between the device and the offense. Because the police. He consented to a search of the sedan, and a
affidavit in the instant case failed to do so, we cell phone was found inside. Appellee refused to
discern no abuse of discretion on the part of the consent to a search of the phone, so investigators

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